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An anonymous reader writes "The landmark ruling of a few months ago that limited patents to inventions which include a machine or which transform physical matter has been appealed up to the Supreme Court. 'On the one side of this controversy... are those... who argue that patents must be available to encourage innovation in devising new ways to conduct business in the global information-based economy, including encouragement for new ways of digitizing business methods. On the other side are consumer advocacy groups and free-market devotees who worry that patent monopolies could tie up methods of creative thought processes, including teaching, judging, creative writing, making medical judgments, or picking juries (some current, real examples of claims).' The Bilski decision has already had an impact on potential software and biotech patents, in addition to the obvious limitations on business method patents. The petition (PDF) argues that the 'machine-or-transformation' test conflicts with the broad language of the patent statute and with congressional intent. It's entirely within the Supreme Court's discretion to take the case or not, but for now it looks like the issue is far from decided."

that would still let them sit on it for the time period allowed. What they need is for people to prove they can actually make or do whatever the patent is for, or at least have some sort of progress made. I could patent teleporters and ion cannons if I wanted and then just sit on it but I shouldn't be allowed to unless I show some sort of proof that I've already started building one of those devices or at least have research that led to a blueprint that I'm pretty sure will work.

I could patent teleporters and ion cannons if I wanted and then just sit on it but I shouldn't be allowed to unless I show some sort of proof that I've already started building one of those devices or at least have research that led to a blueprint that I'm pretty sure will work.

You already can't patent something unless you can show that you've either built it or have done sufficient research that would allow someone with proper manufacturing capabilities to build it. It's right there in the statute, 35 USC 112.

It's not my field, so I really can't say whether the description provides enough detail to allow one of ordinary skill in the art to build it. But, look at it this way - if it can't be built, no harm, since by definition it's not impeding innovation; and if it can be built but isn't terribly useful yet, then even better, 'cause it will expire and go public domain before anyone's ready to use it.

Kinda like if you applied for a patent on a habitable enclosure for floating on Saturn's gas clouds - it'll go pu

No one can build it. It is an antigravity propulsion system, which also makes it a perpetual motion machine. "The spacetime curvature imbalance, the spacetime curvature being the same as gravity, provides for the space vehicle's propulsion."

It appears that it also mentions a power supply and a 41% efficiency. That makes it not a perpetual motion machine.

However in theory, theory and practice are the same, but in practice, they aren't. The large number of "wouldn't it be cool if" patents and existing devices with an internet hung on the side is testament to that.

So if I invent a whole new replacement for the transistor that can reduce the scale in the same way the original transistor improved on the vacuum tube, but I have no capacity to fabricate it in any useful way, I should derive no benefit? Bit harsh, don't you think?

Personally, I think a lot of the problem is simply that we have no clear way to identify obvious patents. Patents on trivial things (like the patent on Elliptic Curve implementations that basically boils down to representing sign with a bit, rat

So if I invent a whole new replacement for the transistor that can reduce the scale in the same way the original transistor improved on the vacuum tube, but I have no capacity to fabricate it in any useful way, I should derive no benefit?

Ideas are cheap, it's all the details that have to be worked out during implementation that are the important part (plus the other important part, working out all the extra details that make mass production feasible).

So if I invent a whole new replacement for the transistor that can reduce the scale in the same way the original transistor improved on the vacuum tube, but I have no capacity to fabricate it in any useful way, I should derive no benefit? Bit harsh, don't you think?

I'm pretty sure you can patent it, even if you don't have the manufacturing center to produce it. Your patent would have to include exact instructions for someone that does have the manufacturing center, though. Of course, without any kind of production ability, I'd be surprised if you'd be able to figure out all of the details in the first place.

What you can't patent is "a transistor that is one tenth the size of normal transistors" without giving any details about how you would create such a device.

Even if you get the patent without doing the actual fabrication, it should have to be relatively specific. So the group that actually does the fabrication and fills in all of the details you left out can just apply for their own patent and site you as prior art. And they'll patent all of the hardware needed to actually perform the process.

Yup. I was working on a project that greatly enhanced a certain medical diagnosis (made it quick, accurate, non-invasive, cheap, etc). The inventor (I was merely the coder) ended up selling the patent to the company whose device we made obsolete, and they just buried it. Not a very good feeling, but it happens all the time.

No, whats needed is a requirement to demonstrate what you want to patent. You must show that what you want to patentable is buildable by ANYONE with sufficient money and equipment and parts and skills (i.e. someone skilled in the relavent art)For example, if you want to patent an encryption algorithim, you have to show code, pseudo code, flow chart or otherwise showing enough for this algorithim to be implemented by anyone knowing enough about programming/encryption.If its a new widget that can make jet eng

I'm not holding my breath but I'm hopeful that the Supreme Court will take this opportunity to sound the death knell for silly patent applications (and granted patents) like Bilski. As a bonus I hope they put the kibosh on software patents. I know it would make the lives of many software engineers much better and it would definitely kickstart innovation in the software industry.

As a patent attorney, I need to be careful in voicing my opinion on this, but I do hope that the net result of Bilski stands. It would turn back the tide against the idiocy that started with State Street. The non-machine based patents have gotten out of hand. I am a geek and computer nut/engineer first, and I want to see business method patent that contain no real manifestation of the method rendered useless. Otherwise, taken to the extreme, screenwriters could start patenting movie storylines. (When I

Unfortunately (it's not what you meant, but...) I fear the SCOTUS right now--regardless of whether it is conservative or liberal--is most importantly pro-BUSINESS. And that means they may very well smack down Bilski HARD.

On the one side of this controversy... are those... who argue that patents must be available to encourage innovation in devising new ways to conduct business in the global information-based economy, including encouragement for new ways of digitizing business methods.

However R&D isn't cheap You could spend millions on R&D for a invention. If a Company cant have a guarantee that their R&D dollars will pay off then they won't have R&D. Patents insure that your invention give you the completive advantage for a time to make up the loss revenue in R&D.

Patents mean that you might not be legally allowed to use the results of your R&D without paying off someone else first. They also don't ensure that the results of your R&D will actually be useful or sellable. The only mean that others can't directly copy your results, but copying something physical takes long enough that you'd probably have a substantial first-mover advantage anyway.

So in a world with no Patents there will be much less R&D and less innovation. Or people will hold onto their new ideas much longer as not having a mechanism to properly sell their ideas along.

Patents have historically resulted in some area of technology being made "off limits" to further development for a couple decades, I believe that Against Intellectual Monopoly has a good account of this happening with the steam engine.

Patents mean that you might not be legally allowed to use the results of your R&D without paying off someone else first. They also don't ensure that the results of your R&D will actually be useful or sellable. The only mean that others can't directly copy your results, but copying something physical takes long enough that you'd probably have a substantial first-mover advantage anyway.

To provide a vague but true example, I recently worked for a startup that developed a product independently for something that was fairly obvious (applying existing technology to a different industry), and during a patent search it was discovered that to bring their product to market would violate several patents (all of them software).

After trying to re-design the product to steer clear of patent issues, the product never achieved its potential before the money ran out. Had we taken the direct route, we would have been done and sold a million units by now.

The problem with process and method patents is that they patent the goal rather than how the goal was achieved. With a typical mechanical patent, you first state your goal and then patent the 'way' to achieve the goal. If someone wants to achieve the same goal they can, so long as they use a different 'way' to get there. A process patent frequently focuses on the goal rather than the way.

For example, I should be able to implement a way of creating a PDF compatible file without violating any patents... assuming I used different code to achive the same result. This being the case, there is little reason to patent software, as it's trivial to change code and arrive at the same result.

Or, say I want to encode an MPEG compliant file, so long as I don't use the same code as someone else, I should be able to create my own implementation without being in violation of any patents or copyrights.

Patents have historically resulted in some area of technology being made "off limits" to further development for a couple decades, I believe that Against Intellectual Monopoly has a good account of this happening with the steam engine.

Best example is probably the Selden patent [wikipedia.org] on the gasoline-powered automobile. In defending the patent, they tried to keep Ford out of the market. Ford won, and the rest as they say is history. If Ford had lost, a lot of his inventions we now take for granted (assembly line, interchangeable parts, etc.) wouldn't have been invented until much later.

In this particular case, Ford won the patent suit on the grounds that the specific implementation covered by the patent (a Brayton engine) was not the implementation used by Ford (an Otto engine). IMHO that's how the patent system should work. You should not be able to patent a general concept (e.g. a gasoline-powered automobile). You should only be able to patent a specific implementation. If someone else comes up with something that does the same thing but with a different implementation, it has to be allowed to compete with your invention so technology can progress. Otherwise you get patent trolls holding entire segments of industry hostage to their royalties and stunting technological progress.

Who said anything about patents being bad? The words "information" and "business process" do not jive with what the patent system was intended to be used for. Nor do they happen to cost millions or billions in R&D.

The messed up part about all of this is that it's all caused by an early misinterpretation of technology by courts. There was a case that came up where a patent was filed for a device (a rubberizer, IIRC?) that used computer control to accomplish its innovative task. The judge correctly assessed that the invention as a whole was innovative and granted patent protection.

Unfortunately, the court cases that followed cited that case as precedent for software patents. The judges didn't understand the difference and started granting exceptions carte blanche. Thus we ended up in the screwed up system we have now with no oversight over what is a valid patent and what is not.

Even more messed up is that patent law is okay. It says that patents should be non-obvious, it says that they should have no prior art, etc., etc., etc. Yet technology patents regularly get shoved through the system without any of these checks or balances applied.

The bozos who are defending this messed up violation of the law as legit are nothing more than charlatans who couldn't make an honest living if they tried. Last I checked, many of them even helped tank the world economy in recent news.

Who said anything about patents being bad? The words "information" and "business process" do not jive with what the patent system was intended to be used for. Nor do they happen to cost millions or billions in R&D.

For the amount that Amazon's One-Click patent gets bashed, I've heard about far worse. I keep hearing commercials about a bank's "Keep the Change" program. It consists of this pseudocode:

But in reality you are just a fringe group who (I am not trying to insult you) really doesn't matter that much.

Fringe group?! Gee, most Internet sites are powered by open source software AND operating systems. Most consumer grade wireless routers are powered by open source software. An insane amount of embedded hardware is based on open source. Last I checked, at least 1 in 5 web browsers are powered by open source software.

The protocols used on the global internet that makes the entire world go round these days are OPEN standards and most TCP/IP implementations are based on open source implementations and incor

You see patents as a short term Consumer gets screwed as the people who may be best able to implement the patented invention cannot, although that isn't necessary true as the people who hold the patent could be the best able to implement it or have licensed it to people who can or have an overall patent sharing agreement with other companies.

This doesn't make much sense (semi-incoherent run on sentence).

So in general Patents only suck for Open Source Implementers, or some small companies

Software patents are extremely important to certain businesses, most of all the telecoms industry, which manages to keep prices rising in an area where their half-life should be 12-18 months.

If there were no software patents, it would be much harder to maintain the telecoms cartels, the high prices, and the jobs and profits they generate. So for many people, software patents are very, very useful.

Of course the overall effect is to slow down progress in communications, keep costs artificially high, penalize emerging industries, and punish the competitiveness of regions like the USA and Europe, which allow the cartels to continue.

However, the times are changing and I've written [ipocracy.com] about why the growing power of the Internet as a non-political force in politics will cause the end of software patents.

It's worth noting that software patents will also be reviewed in Europe by the European Patent Office's Extended Board of Appeal (EBA), the closest thing we have to SCOTUS with respect to patents in Europe. Sure, the EPO is a fiefdom of the patent industry and EBA its chief priesthood, but reexamining the cosy arrangements that allowed software patents to exist so far is very significant.

I think we are seeing the swing of the pendulum back towards sanity and the understanding that when it comes to the digital economy, any barrier to trade and competition - and the essence of a patent is to prevent competition - is harmful.

If there were no software patents, it would be much harder to maintain the telecoms cartels, the high prices, and the jobs and profits they generate. So for many people, software patents are very, very useful.

The telecom cartels primarily exist because of the massive infrastructure requirements to be a 'real' telecom. Its very little to do with software patents.

Actually, you might be slightly wrong - AT&T had all the patents and used them to be huge infrastructure in a monopolistic way. The break up of AT&T helped, but you still needed a lot of infrastructure to compete with them. It was patents that built the infrastructure barrier to entry that you speak of.

Telecoms cartels have nothing to do with patents. They arise because of either spectrum licences in the case of wireless communications, or the fact that you can't put new cables down without government permission, and even if you do get that, it is prohibitively expensive to do so.

This "infrastructure is expensive" argument is 20 years out of date. Newsflash: no-one puts down cables any more unless they're for IP. There are many, many ways to build cheap and extremely competitive telecoms networks that would end the cartels overnight. They don't mostly happen because patents block innovation wherever it is a threat. I remind you that telecoms has become a software industry, top to bottom, and every "invention" of that industry is heavily protected by software patents.

Spectrum "regulation" are just the side effect of a powerful cartel that has friends in government - a good way to raise the cost to unbearable levels for newcomers and tax the consumer. Again, it's patents that prevent more efficient use of spectrum and those "expensive" lines you talk about.

It is all about keeping out competitors that would disrupt the cozy price-fixed market.

Try to start a VoIP telecoms provider, and see what happens. Read about Vonage, if you forget your recent history. Now tell me again, seriously, that telecoms cartels have "nothing to do with patents".

Patents are the core of the telecoms stack and the reason your mobile phone bill rises year on year.

Yes, to truly re-create competition in the telecoms industry, we need a powerful competition authority, and we need much better policies for spectrum use, but most of all, we need the end of software patents.

There are many, many ways to build cheap and extremely competitive telecoms networks that would end the cartels overnight. They don't mostly happen because patents block innovation wherever it is a threat.

I thought they mostly didn't happen because local (or sometimes state?) governments sell monopoly rights on physically laying the cables (supposedly to reduce the time the streets are torn up, or something)?

I think he talking about things like VOIP. In theory you could, for no additional cost over what you already pay for high speed Internet do all of your telephony over your computer, or use a system like Vonage to create a "phone" system that piggie backs off of your Internet. The problem is that patents prevent or limit this kind of thing. Vonage, IIRC, paid a fairly large settlement to Verizon for patent infringement and now has to pay royalties to operate. This is almost certainly increasing their ove

The problem with Vonage - and all current VOIP implementations - is they fail the basic requirements that the wired telecom providers are required to support. Things like 48 hours without electric power. 911 that actually works with emergency services. And literally a hundred other requirements, all things that are really good for people that need basic voice connectivity.

Sure, VOIP implementations are cheap. But in comparison to what? I can use Yahoo Messenger for free. How is Vonage cheaper than that? Neither Vonage or Yahoo are paying for the infrastructure to connect me to the network. The $30-a-month POTS service is doing exactly that. What would Vonage charge if they had to pay to supply their customers with network connectivity?

Sorry, but this has a lot more to do with tariffs and regulations than patents. Sadly, it takes some serious wakeup calls before people understand the difference between the POTS network in the US and "phone service" supplied by the likes of Vonage. A 24 hour power outage might be a good start. Having a 2 year old dial 911 and not be able to recite the address might be another.

Your example was that Vonage was trying to connect to an existing POTS network using technology patented by Verizon. Vonage continues to exist by signing a two-year contract with VoIP inc. which will provide the POTS access. I assume that VoIP paid the required royalties and/or have the infrastructure available to provide the needed service to Vonage.

Like anything else, if abused they can be harmful but if applied correctly they allow a company/person reap rewards on the time/money they spent developing something.

No, they make it easier to reap rewards, or to reap rewards out of proportion to what was invested. The monopoly power granted in order to do this is clearly harmful (especially so in fast-moving industries), and is not strictly necessary in order for new development to be profitable. The question is whether the benefits (additional innovation) are greater than the downsides (stagnation from higher barriers to entry)... I've seen decent arguments in Against Intellectual Monopoly that historically the downsi

The monopoly power granted in order to do this is clearly harmful (especially so in fast-moving industries), and is not strictly necessary in order for new development to be profitable.

Your opinion. My opinion is that it lets companies reap rewards for products people want to buy. So they will invest XYZ dollars and hopefully make that money plus a profit.

The entire point is that others need your permission to use/improve something you've patented. This is clearly a harm, since it causes them difficulty in doing something useful. It is also clear that patents are not strictly necessary, as innovation has existed without patents. That there is also a benefit (which you cite as your opinion) is entirely irrelevant to this; patents cause harm (restrictions on using existing knowledge) and also have a benefit (greater potential gains for generating new knowledge

The decision is very risky as the quality of the decision of the Circuit Court was very high.

Not only that, but it wasn't just any court - it was the Court of Appeals for the Federal Circuit, i.e., people who actually like patents in general. If even they don't like software and business method patents, it seems pretty unlikely that the Supreme Court is going to change the decision.

People seldom consider the implications of abolishing software patents.

Sure, there are a lot of good arguments against granting artificial monopolies on computer software--and many of them ARE good arguments. However, categorically denying patent protection to software creates some logical difficulties.

Most computer aficionados are familiar with the idea that software and hardware are logically equivalent. We CAN build specialized hardware to do what we would have our software do.

It would seem a bit anomalous, therefore, to allow a patent on specialized hardware that embodies precisely the same inventive character as its patent ineligible software counterpart.

So, in my opinion, the real issue we are seeking to resolve here is more subtle and obscure than we are admitting. Certainly, affording computer software a unique status as patent ineligible subject matter is not the most complete solution.

I think that's what the court was getting at in Bilski. They were searching for some kind of logical test rather than an unexplainable, static, and inflexible prohibition on a certain class of invention.

I'm not saying the court was right--I'm trying to shed a little more light on the playing field.

Most computer aficionados are familiar with the idea that software and hardware are logically equivalent. We CAN build specialized hardware to do what we would have our software do.

It would seem a bit anomalous, therefore, to allow a patent on specialized hardware that embodies precisely the same inventive character as its patent ineligible software counterpart.

AIUI, anything "legitimately" patentable must center around causing some sort of physical change, so that sort of hardware wouldn't count. The only thing that counts is something where the main point is turning some physical input into a different physical output, and it doesn't really matter whether parts of this involve software or not. (But it obviously can't be all software, because software is re-purposable and non-physical.)

If you can do something with a standard PC and software, you aren't going to want to produce custom made hardware to do the same task. If you can't, then whatever peripheral you have to attach to your PC is potentially patentable.

Depends. There are plenty of patents involved in a standard PC. Intel has more than a few patents for example. The stripped down computer could get patents for the same sort of reasons that a full sized computer gets them.

It would seem a bit anomalous, therefore, to allow a patent on specialized hardware that embodies precisely the same inventive character as its patent ineligible software counterpart.

Actually, from my point of view not at all. I think this may be exactly where the line should be drawn. There are very clear differences between a hardware embodiment and a software one. The most important one is that a software one is much more end user modifiable. The hardware is a fixed product which can't be modified.

You do understand that very nearly all interesting software patents can be upheld then? All it takes is the building of the "One-Click Interpreter" device that connects as a network front-end before a server which then actually implements the "Amazon One-Click". This can be done without any software, programming or anything else other than just hardwired interconnections between logic devices.

Things like this can be built today and could have been built in the 1970s, although it would have been larger and

So, the thing we really want to come out of this is a further limitation of software and business method patenting than the lower court case arrived at. But this is going to be a really big fight, with deep pockets on both sides. And it's going to be years before there's an outcome, if they take it.

If the Supreme Court doesn't accept it, I suppose we have a chance to bring yet another case and try for more limitation of software patenting.

What really bothers me is that our only viable path to do this right now is the courts. We've not been able to establish a legislative campaign.

What really bothers me is that our only viable path to do this right now is the courts. We've not been able to establish a legislative campaign.

I would normally be quite bothered by trying to get my way using the courts, when the legislature isn't in agreement. It seems like judicial activism of a sort.

But I'm coming to the conclusion that the House and Senate are basically ruled by external money on issues like this. That makes judicial "activism", especially in a case like this, a lot more palatable. I

Well, if the Supreme Court doesn't take it, Bilski is upheld, which is a good start.

If the Supreme Court does take it, and upholds it, it's a better start.

And if SCOTUS does hear it, it won't drag out for years. They move through cases very fast compared to other courts out there. You file briefs and you get 30 minutes to present your case. That's basically it.

(disclaimer: there can be exceptions, but I honestly wouldn't expect this to take longer than a month even at the extreme)

> If the Supreme Court does take it, and upholds it, it's a better start.

The Supreme Court doesn't grant cert for no reason. They just don't usually hear cases they don't want to modify in some way.

So if they grant certiorari, there's a better than even chance that they want to reverse it (which would be bad). I had a professor who tracked statistics of all kinds with respect to all the Supreme Court justices and I seem to recall him giving something like 2-1 odds for a reversal of some kind based on y

There are no ways in which software patents can help anyone but patent lawyers. Since American patents are only binding in America, they put domestic companies at a competitive disadvantage with the rest of the world. Anyone can open an American office and start filing patents to be used against us, but good luck to an American company that wants to file patents in China to protect their claims.

Anyone can open an American office and start filing patents to be used against us, but good luck to an American company that wants to file patents in China to protect their claims.

Yeah, if only there were some sort of Cooperative Treaty about Patents that would grant substantively similar rights in all the signing countries. They should probably hold a Convention in Paris to discuss it, and maybe set up some sort of Bureau in Switzerland to be an International registry.

... atents can help anyone but patent lawyers. Since American patents are only binding in America, they put domestic companies at a competitive disadvantage with the rest of the world....

I'm not sure that's right. Consider this sequence:

1. America allows software patents.

2. America leans on European countries to allow them, and eventually succeeds.

3. SCOTUS invalidates software patents as non-Constitutional.

4. To be compatible with EU, which now has software patents, US signs a treaty allowing software patents, which, being a treaty, I believe, carries same weight as other parts of our Constitution. Now whole world has software patents, just because the U.S. temporarily did in the beginning.

what makes you think treaties carry the same weight as the Constitution. You really think you can use a treaty to make an end run around the amendment process. I am sorry, but those sections that go against the Constitution either invalidate the treaty or are held as unenforceable.

On the one side of this controversy... are those... who argue that patents must be available to encourage innovation in devising new ways to conduct business in the global information-based economy, including encouragement for new ways of digitizing business methods.

Yeah, because turning innovation into a minefield is a really good way to encourage it, as is connecting rewards to high speed paperwork-fu rather than marketplace superiority (or even novelty; see IIRC radio and steam engine, the "inventors" were those who first combined other people's ideas in a paperwork filing).

Many people seem to mistake "protecting innovation" with the business of licensing ideas... Meaning, one seems to mean that you actually developed something.. The other means you thought of something. Big difference...

IMHO, being able to patent parts of the human genome is stupid. You didn't INVENT anything. Now if you designed a replacement gene that does something new, sure you can have a patent on it. But that would have to exclude cures for things. Say you figured out the gene for color-blindness. Chances are you figured it out or at least verified it against the normal gene. No patent for you. But if you invented a gene that gave a person really great night vision, yeah I'd give you a patent for that.

But most patents on "creation" of genetic material are really derived from southern hemisphere based plants and animals. Knowing that, I sure wouldnt grant a patent on plundered genetic knowledge.

I specifically wrote a paper on this very topic. I refused to publish it due to, lets say, chilling effects. It's been downhill since Chakrabarty winning that supreme court judgment, and I expect "ownership" to go even lower. I could also cite cases of a Canadian Rapeseed farmewr who lost his farm due to Roundup Re

The answers below are how standard patent rulings would take place, not my decision or want.

1. What if you 'invented' it by looking at a creature with really great night vision, and then copy and pasted it over?

Regardless. If you made it, its an invention. If you found it, a discovery. Both are patentable.

2. What if someone was born with really great night vision, and you just copy and pasted it from them?

Yep. Look at the Ashkenazi Jew lady who had expressions of breast cancer.. Now every Ashkenazi Jew who takes a BRCA-1 test pays a royalty. Non-Jews dont.

3. What if someone was born with really great night vision AFTER you patented it -- are they in violation of your patent?

Most likely. And the worst case: Patent companies have unproportionately large legal bases to enact lawsuits towards. If you are a peon, you will lose, either by 20+ year trial, or directly. Note that 17 years is length of patent.

4. What if the children of the people you modified with night vision inherit the gene? Do they owe royalties?

There was probably a contract that included offspring in the original document. They will likely owe royalties. If they do not pay, the company will probably try a copyright suit along with a patent suit, because you knowingly infringed on copyright. Since it's knowingly, fees are upwards 35000$-250000$. Thank the copyright system.

What if the children of the people you modified with night vision inherit the gene? Do they owe royalties?

We can do it like Plant Breeding Rights -- they don't get to reproduce without your permission.

Or, we can do it sensibly, and say that if you patent a part of a self-reproducing device (or organism), you lose patent protection in as much as that device or organisms normal reproductive methods are concerned.

But if you invent some sort of treatment for someone who has the Colour Blindness gene, using your research of the differences between the colour blind gene and the normal gene, that treatment might be patentable, provided it isn't obvious.

Except I hold the patent for "Apparatus and method for targeting and destroying holders of overly broad BS patents with cruise missiles." I've also put in for "Apparatus and method for hitting holders of overly broad BS patents with flying shoes."

The Supreme Court has been generally narrowing the scope of patent law over the past few years. My guess is that they won't take the case, and if they do the odds are that they will uphold Bilski, or possibly narrow the scope of patentable material even further.

I have to ask. What happens if this does get ruled in our favor and business method/software patents are ruled invalid? What happens to the companies that have invested millions into their software patent portfolios? Do they have to just suck up that cost? Does the USPTO refund their money? Does the USPTO get sued? (I'm not tolling here, I'm genuinely interested in the aftermath of such a landmark ruling.)

They would at best be put back in the position they would have been in had the USPTO refused their application in the first place. I don't think that means you get your application fee back. It certainly doesn't mean you get your patent attorney fees back, and that is by far the biggest part of the cost of applying for a patent.

What I'm interested in is the position where people have been paying royalties for a patent that is subsequently declared invalid.

Patents give an unnatural degree of control over an abstract idea or principle. While such a system may promote some degree of innovation, it must be used with care, and at present is used rampantly, wantonly and without concern for knock-on effects through either the economy or the rest of life in general.

A "business method patent" is bullshit. You create a new model of business as a necessity to do business. Digital downloads, for example, are an untapped way to make money... and then Apple creates iTunes. The consumer wants your product; your "business method" is a way to make them get the product from you, not from a competitor. As the inventor is the consumer, there is ALWAYS pressure to come up with new business methods!